Posts Tagged ‘Human rights’

A right is entirely a social construct. .. I take a right to be an entitlement. It is a possession of status within some specified human society which gives its owner a privilege to act or not act in some specific manner, and/or a claim on other entities within the relevant society to act or not act in some specified manner. …… Rights can not – and do not – exist except when vested by a competent grant-giver in a qualified recipient.

A unilateral proclamation or declaration does not create a right. A human right can therefore only be created between two human parties, where the parties are identified and competent to fulfill their obligations (see part 2). For a right to truly exist, the behaviour of both parties in fulfilling the social contract is crucial. Any right which is an entitlement of one party is utterly dependant upon the behaviour of other involved parties. Without an acknowledged and accepted obligation of the other parties, no right exists. It is meaningless – and entirely insufficient – for third parties to declare that relevant other parties should or ought to have such obligations. A fundamental tenet of all valid contracts is that the parties involved commit to their obligations. It is not valid or acceptable for any party to create commitments for other parties. A contract can only be valid if the relevant parties freely enter into and commit to their own obligations.

A true right can only exist if a valid social contract between a qualified party on the one hand and a competent party on the other, is in force.

The UN’s “Universal Declaration of Human Rights” (UDHR) was a knee-jerk reaction to the horrors of the Second World War and the state of the world immediately afterwards. Certainly intentions were good. But it was more a listing of pious hopes than any kind of a contract which could be a tool to change human behaviour. The UDHR was a document born of the Holocaust and a desire that such grotesque repression would never happen again. It was intended to be a compass for human behaviour. It has been the wrong tool at the wrong time.

It is my contention that the UDHR has not only failed to be an instrument for “improving” human behaviour, it has alsolegitimised the idea that purported rights are “free” and not linked to any qualifications or duties or standards of behaviour.

In the 70 years since it was formulated, the UDHR has been used as the “bible” for human rights legislation. But the state of humankind today in respect of the real rights accorded to an individual by surrounding society is in most cases no better than in 1948. In many instances it is very much worse. Human behaviour is not any better now, than it was then. It is my contention that the UDHR has done more harm than good. It frees one party (“everyone”) from any obligations or duties or qualifications in the ownership of an entitlement. The other party which must grant and guarantee the right is never defined. As a “contract document” it is not fit for purpose. It has been counterproductive to its own goals because its very lack of rigour has given mere wishes and desires the false status of rights. This in turn has led to the dilution of the necessary requirements for real rights to exist. It has led us down the wrong path. It has provided a very shaky foundation for the legislation that follows which – not surprisingly – is then poor legislation.

Since it was formulated in 1948 and ratified in 1951, there have been more deaths due to recognised “genocides” than during the Holocaust. Religious fanaticism has increased. Freedom of belief has become the freedom to indoctrinate. Barbarism and terror is the new normal for an extremist. The nuclear family has been stripped of its dignity in many parts of the world. To not offend carries more weight than the voicing of true opinion. Mere accusations (especially on social media) now contain a presumption of guilt. Depravity is glorified in the name of “human rights”. Anti-social behaviour is “protected” by purported rights. Having signed up to the UDHR does not stop nations from cruel and unusual treatment of political opponents. States confiscate more of their citizens’ property than ever before under the guise of taxation. The depths to which human behaviour sinks (whether by Mexican drug cartels or by ISIS) has not changed since the Nazi atrocities.

The UDHR fails as a contract document because

it does not address what constitutes a right, and

it does not define the parties to the contract, and

it does not define the obligations and liabilities of the parties, and

it states that the subject of the contract (human rights) are universal, and therefore

contains no commitment from the involved parties

The UDHR ends up being a good-intentioned but banal collection of maudlin platitudes. The entire content can just as well be summarised as Jack Nicholson’s character puts it in Mars Attacks,“Why can’t we all just get along?”. The UDHR was a document of its time. It had the best of intentions but it does not stand the test of time. If the goal was to improve human behaviour, it has led the world down the wrong path.

There is one fundamental, insidious, and corrosive flaw in the UDHR. It is a fatal flaw. This is the legitimising of the view that human rights are “free” and universal and unconnected to duties and obligations and standards of behaviour. It is this claim, that every individual, regardless of qualifications or duties, has entitlements which must be honoured by the rest of humanity without any obligations in return, which is the fatal flaw. Universality requires that the purported rights be “free” and that is why – as declared – they have no value in the real world. The perceived and the true value of any right depends upon the parties involved. Different rights have different values not only to the right-holder but also to the party granting and guaranteeing a right. Rights have a value for the right-holder and rights have costs for the guarantor. These values and costs are profoundly impacted by human behaviour.

There is also a philosophic failure in the UDHR. This is the adoption of the fantasy that human behaviour can be changed by proclamation and declarations in a top-down approach. There is an arrogance – albeit good-intentioned – in a text written by an elite purporting to represent all of mankind. Declaration of purported rights do not create behaviour. It is behaviour which creates and allows the manifestation of real rights. Human behaviour must of necessity begin with the individual, evolve locally and nationally and build up to the international. A top-down approach as in the UDHR is conceptually and fundamentally in error. If human rights are to be real they must first be created and ensured and exercised locally. They must first be rights which are clearly defined (not amorphous as in the UDHR) and specific (not universal and valueless) such that their ownership is clear and their exercise can, in fact, be guaranteed. Implementation at the local level can then be allowed and encouraged to grow to become global to the extent that shared values produce similar behaviour. Universal, amorphous rights as envisaged in the UDHR are necessarily non-existent and unenforceable. If human rights exist at all they start with my behaviour and yours, not with a sanctimonious declaration from the UN. Freedom of speech starts with what I am willing to allow my neighbour to say without triggering any opposing behaviour. If he slanders me then I find the cost of guaranteeing his free speech too much to bear and do what I can to silence him. Every right has a value and a cost. Behaviour creates the rights that are exercised. The rule of law has a part to play – but no system of law can guarantee compliance. In any event it can only begin with laws created at the local or national level to suit local or national rights which themselves have to be created and guaranteed. Global laws imposed on local societies is the cart before the horse.

Human rights are not “free”. They have value to the right-holder and a cost for the guarantor. And if they were “free” – as universality implies – then they have no value. It is by insisting on universality that the connection between rights and behaviour is lost. I suppose it really boils down to whether it is more important to make sanctimonious proclamations about what “human rights” ought to be, or whether it is more important to change human behaviour so that “human rights” are exercised and actually delivered.

The UDHR is written in the form of a contract with seven “whereas” clauses in the preamble, a proclamation clause and thirty Articles. But it is no treaty and no contract. It is just a declaration. As a contract document it is not fit for purpose since the parties to the contract, their obligations and liabilities are all undefined. Even the subject of the declaration – “human rights” are undefined. To its credit it has served as the basis of much legislation. But it has failed in its purpose of improving human behaviour – if that in fact was its purpose. It undermines itself by declaring human rights to be free and universal (and therefore of no real value).

As the UDHR is written even a divine power, if one existed, could not guarantee the purported rights

This is a commentary on why I find the UDHR not fit for purpose as a contract document.

In a contract document the whereas clauses in the preamble are introductory statements of fact that mean “that being the case.” In the UDHR the preamble and its whereas clauses are, at best, ungrounded statements, and at worst, statements of religious belief.

Like this:

Human rights do not occur naturally. They must be created and they must be bestowed. They cannot be self-bestowed. Once bestowed, if their exercise is thwarted they cease to be rights. Human rights can only be created as a social contract where the parties to the contract are able to, and do, fulfill their obligations.

A right is entirely a social construct. When encompassed within a legal, moral or ethical system, it could be taken as a social contract. As a contract it requires to be between two parties; the grant-giver and a recipient. ….. I take a right to be an entitlement. It is a possession of status within some specified human society which gives its owner a privilege to act or not act in some specific manner, and/or a claim on other entities within the relevant society to act or not act in some specified manner. …. Rights can not – and do not – exist except when vested by a competent grant-giver in a qualified recipient.

Two parties are necessary for a right to be created. The granter must be competent to grant and to ensure the exercise of the right and the recipient must be qualified and “free” to exercise the right. If a right is claimed but it is not clear as to who grants it and who guarantees it, then it is not a right. It may still be a wish or a hope or a desired standard of behaviour, but it manifestly is not a right. The granting party needs, not only to be identified, but also to be competent to grant and guarantee the entitlement. A party – such as a government – may go some way towards the grant of an entitlement by enshrining it in law, but no law (except the laws of nature) can inherently guarantee compliance. Moreover, even the grant of the entitlement is restricted by the jurisdiction within which the granting party holds sway. The party owning a right needs to be a qualified party who has been explicitly vested with the right by a competent party. The very concept of “human rights” is constrained to be applicable only to humans. It is necessary requirement for any right that the grant giver identifies which humans are to be vested with the right. “Everybody” is not a proper definition of a right-holder since there is no grant-giver capable of granting any kind of a right to “everybody”. Any claim of a right being universal and applicable to “all human beings” always fails because

there is no competent agency – human or divine – which is able to grant and guarantee such “universal” rights to all humans, and

every real claim of a “universal” right is constrained to not be available to some humans.

Most claims of “human rights” fail the test of being rights and are merely wishes. Even where a government can be identified as the party granting and purporting to guarantee the right, the reality is that the right is not guaranteed.

The UN “Universal declaration of human rights”proclaimed by the United Nations General Assembly in Paris on 10 December 1948 is unsatisfactory at very many levels. As a wish-list I have no great objection to it. As a list of standards to be achieved it has many admirable goals. But it is mainly a collection of platitudes – many undefined and many meaningless. It builds on questionable assumptions and a somewhat suspect philosophy. The title itself is ambiguous. Is the declaration universal or is it proclaimed that the desired rights are universal?

But the primary flaws with the UN document are that

it refers to rights without considering what is necessary to constitute a right, and

it ignores the qualifications necessary to own a “right” by claiming that rights should be universal

It starts by “recognising” the “equal and inalienable rights of all members of the human family” with no reference to any party which might be able to grant and guarantee the claimed rights. By claiming that such rights be available universally, it immediately undermines its own intent since there is no human agency capable of granting any right universally. The document contains 30 Articles, and every single Article fails the test of defining, or even trying to define, who grants and who guarantees the proclaimed “right” and to whom.

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There are no human rights which follow as an inevitable consequence of the natural laws of the universe.

Consider what is needed to create a right. Mere declaration does not suffice. A right is entirely a social construct. When encompassed within a legal, moral or ethical system, it could be taken as a social contract. As a contract it requires to be between two parties; the grant-giver and a recipient. In fact, our entire conception of rights has meaning only when applied to the social interaction between humans. All rights are about the behaviour of humans.

I take a right to be an entitlement. It is a possession of status within some specified human society which gives its owner a privilege to act or not act in some specific manner, and/or a claim on other entities within the relevant society to act or not act in some specified manner

The granting of a right is a necessary condition but it is not sufficient for a right to exist. It must be granted by a party such that

ownership of the right is vested in the receiver, and

exercise of the right by the recipient is guaranteed by the grant-giver

Rights can not – and do not – exist except when vested by a competent grant-giver in a qualified recipient. The grant-giver must have the power to grant. The competence of the grant-giver is fundamentally necessary (but also not sufficient) to the creation of a “right”. An individual can grant a right to another individual only if it is within his power to do so. A grant which is outside the competence of the grant-giver to give creates no right for the receiver.

It is also a necessary condition – though not sufficient – for the recipient to be qualified to possess and exercise the granted right. No rights can exist if the grant-giver does not have the wherewithal to vest ownership of those “rights” in the recipient. Nor can they exist if the recipient is not capable of exercising such vested rights or if such exercise is not ensured. Declaration of so-called animal rights does not create any animal recipient qualified to possess or exercise that right. Such declarations do not vest privileges or claims in any animal and are actually about human behaviour.

Anybody can declare a right but for any grant to be meaningful, the granting party must be able to guarantee and ensure the exercise of that right by the right-holder. A right which cannot be exercised is vitiated and empty. It fails, in fact, to be a right, whether of claim or of privilege. The grant of such empty rights then becomes merely a statement of wishes. A party which can only grant empty rights, where the exercise of such “rights” is not guaranteed, is a party not sufficiently competent to grant rights.

Human rights are neither universal nor absolute. They are not written into the laws of the universe. They are an expression of desires and wishes and hopes about standards of human behaviour. In reality there are no human, or even divine, agencies which have a competence sufficient to grant so-called human rights. They are declared – always – by bodies or entities which lack the full competence first, to vest ownership of the rights in the recipients and second, to guarantee and ensure their exercise.

The UN Declaration of Human Rights (UN DHR) is just that – a declaration. What it describes are not rights. The UN can neither guarantee nor ensure the ownership or the exercise of those declared rights or of the implied duties. Neither can the governments of the UN’s member countries guarantee the exercise of the rights declared. Without the ability to guarantee the exercise, the rights declared are not, in fact, rights at all but are merely pious hopes.

The UN Declaration of hopes and wishes is only as good as it is allowed to be, by the assumptions it starts with. The assumptions are not sound. It is a declaration of desirable standards of human behaviour. Unfortunately it ignores the basic requirements for any rights to exist. It does not specify the parties involved. It ignores the competence required of the party granting the rights and ignores the qualifications of the receiver of the rights. The fundamental claim in the UN DHR that “all humans”, independent of their behaviour, should possess these “rights” is untenable. How? Who is competent to grant such ownership? To whom? And who guarantees the exercise of these “rights”.

Whatever the UN Declaration of Human Rights may be, it is not about rights at all.

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There is something obscene in the manner in which so called “human rights” are being exploited by the mass murderer Anders Behring Breivik in suing the Norwegian government for keeping him in isolation. Apart from the fact that he has been sentenced to just 21 years in prison for the murder of 77 people (which is less than 100 days in prison for every person murdered), I find it objectionable that

he is considered “human”, and

he is allowed to sue

Of course it is up to any society to make whatever rules it wants and to decide what it wants to consider “human rights”. It is also up to any society to be as stupid as it wishes, and if the Norwegian people wish to treat Breivik with the respect due to a human then they can do so.

But surely they don’t have to treat a criminal lunatic as a sane rational being?

Mass killer Anders Behring Breivik is about to return to court – but this time it is to sue the Norwegian state, claiming it is violating his human rights by keeping him in isolation.

The right-wing extremist will appear in a gym-turned-courtroom within the prison in which he is being held on Tuesday. It will be a testing time for his victims’ families and survivors of his attacks.

“Personally I think it is a little bit hilarious but many of the others…the support group, doesn’t like him being in the media again,” said Dag Andre Anderssen, who survived Breivik’s island shooting massacre.

“That is actually the most important thing for us – that he gets to be in the spotlight again – and we don’t like that. We would rather that he be forgotten.”

It was 2011 when Breivik detonated a bomb at Oslo’s central government building, killing eight people and injuring more than 200. He then headed to the island of Utoeya where his gun rampage killed 69 people at a Labour Party camp, most of them teenagers.

Jailed for 21 years, Breivik has his own cellblock at Skien prison, south of Oslo as well as access to a computer, TV and Playstation.

“Human rights” are not absolute and certainly not some divine right. They are just privileges afforded by societies to their members. There is no reason for them not to be subordinate to common sense. There is no reason for stupidity in the name of “human rights”.

I heard Barack Obama trying to make the best of the CIA torture report released by the Senate yesterday. “One of the things that sets us apart from other countries is that when we make mistakes, we admit them. ……… brutal, and as I’ve said before, constituted torture, in my mind. And that’s not who we are.“

But of course it is “who we are”. Certainly admitting a self-judged, wrong-doing – after the event – is also part of “who we are”. But the fact of the wrong-doing remains part of the behaviour which constitutes “who we are”. It does not vanish with a subsequent apology.

While behaviour includes what one says, what one does always overrides if the two are in conflict. So, while the US is certainly to be commended on admitting some wrong-doings after the event, it is also quite clear that that behaviour is – at times – quite acceptable. “American Values” clearly do allow torture under certain conditions. Abu Ghraib and My Lai are part of the reality of the behaviour of the US military. Such behaviour is what they are, notwithstanding that the behaviour was later declared to be “wrong”. Those values are ingrained and it is almost certain that some “torture”and some mistreatment of detainees is ongoing right now, to be apologised for later – if revealed. I conclude that torture itself is not against American Values. The Value could actually be formulated thus:

Torture is wrong but permitted, as a last resort, in special circumstances and must be apologised for if later revealed.

The map of all the countries who were complicit – actively or passively – with CIA’s torture program includes most of the countries who speak loudest and most sanctimoniously about human rights. Add to this all the other countries (Russia, China, India, South American countries, …. ) who also use torture in some form, and I come to the conclusion that there is not a single country today where some form of torture (physical as well as mental) is not at least tolerated under some specific conditions. Nobody claims that torture is a “good thing”, but every country also accepts that it can be justified. The concept of “absolute human rights” is fundamentally flawed. The “human rights” that any society is prepared to bestow upon those within or without that society is dynamic and variable.

Currently “what humans are”, all around the world, includes the use of torture – knowing that it is “wrong” – under certain conditions when deemed absolutely necessary.

There are no absolute values either, just as there are no absolute human rights. How should we judge the behaviour of an ISIS executioner with that of a CIA torturer? An ISIS executioner carries out his bloody beheadings in the belief that he is doing “right” in accordance with his values. A CIA torturer carries out his miserable activities knowing that it is “wrong” but that it is in a “good” cause and justified by his values.

I suppose they will both be gathered to the bosoms of their angry gods in their respective heavens.

BEIJING, Feb. 28 (Xinhua) — China published a report on the United States’ human rights record on Friday, in response to U.S. criticism and “irresponsible remarks” about China.

“The Human Rights Record of the United States in 2013” was released by the Information Office of the State Council, China’s cabinet, in response to “Country Reports on Human Rights Practices for 2013” made public by the U.S. State department on Thursday.

The U.S. government spies on its own citizens to a “massive and unrestrained” degree, the report says. The report calls the U.S. PRISM surveillance program, a vast, long-term mechanism for spying on private citizens both at home and abroad, “a blatant violation of international law” and says it “seriously infringes human rights.” The U.S. intelligence services, by virtue of data provided by Internet and telecom companies — including Microsoft, Google, Apple, Facebook, and Yahoo — “recklessly” track citizens’ private contacts and social activities.

Since 2004, the U.S. has carried out 376 drone strikes killing 926 civilians.

The U.S. has not ratified, or participated in, a series of core UN conventions on human rights, such as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.

Solitary confinement is prevalent in the U.S., the report says. In U.S. prisons, inmates in solitary confinement are enclosed in cramped cells with poor ventilation and little or no natural light, isolated from other prisoners; a situation that takes it toll on inmates’ physical and mental health. About 80,000 U.S. prisoners are in solitary confinement. Some have been held in solitary confinement for over 40 years.

Rampant U.S. gun culture breeds violence that results in the death of 11,000 Americans every year.

Firearms were used in 69.3 percent of the nation’s murders, 41 percent of robberies, and 21.8 percent of aggravated assaults.

In 2013, 137 people were killed in 30 mass murder events (four or more deaths each). A rampage in the headquarters of the Naval Sea Systems Command in Washington D.C. left 12 people dead.

Unemployment for low-income families has topped 21 percent.

The homeless population in the U.S. has climbed 16 percent from 2011 to 2013.

There are also many child laborers in the agricultural sector in the U.S. and their physical and mental health is seriously compromised.

I don’t believe there is any such thing as a “fundamental” human “right” or “freedom”.

Of course any society can establish whatever laws or rules and regulations it likes and insist – if it can – that its members follow these. Societies can define and adopt long lists of “fundamental human rights” or “freedoms” as privileges for their members. The granting of such “rights” does not – in itself – guarantee that members of that society always enjoy the rights accorded. Compliance with laws and rules and regulations is not in-built as with natural laws. Many of these “rights” and “freedoms” are contradictory and can be in conflict with each other. Some rights are used by some members to breach other rights and freedoms accorded to others. “Fundamental” freedoms are found to be unworkable and are then constrained or subjugated to other laws or rights. Some are made applicable to some and not to others. The will of the majority is expressed as laws for the majority which are sometimes used as a means for the oppression of minorities. Rights granted to individuals are subjugated to the rights assumed by the state. (It strikes me also that any “law” which does not in itself guarantee compliance is just a made-up rule and has no special “sanctity”. The “sanctity” of human laws is fundamentally suspect.)

None of the so-called human rights or freedoms are in fact fundamental or absolute in practice. Nor should they be. Common sense dictates that they must be constrained and circumscribed. But common sense is lost when the fanatical defense of any particular “right” takes on ideological proportions.

The “right to life” is never absolute and is always circumscribed. States – and their organs – ascribe to themselves the right to take life in specific circumstances. Exceptions are made in cases of self-defense or abortions or accidents or actions in the service of the state.

The “right of universal suffrage” is never absolute. There are always groups of individuals who are denied the right to vote (children, mentally disabled, resident non-citizens, criminals, certain occupations….)

“Freedom of speech” is never absolute. What society considers to be libel, slander, blasphemy, hate or even politically incorrect is banned under pain of punishment.

“Freedom of thought” is not as absolute as one may think. Thinking “terrorist” or “conspiratorial” thoughts is a punishable crime in many societies.

The “right to liberty” is always constrained by the right of a state to incarcerate those it considers dangerous to society. Parents are allowed to curtail this right for their children. Doctors and hospitals are allowed to curtail the movement of their patients.

In the US it is self-evident that the “right to bear arms” is not sufficiently circumscribed. In spite of its implied “freedom to kill” it is fanatically defended to the point of absurdity.

The latest tragedy at Sandy Hook is part of a long history of school shootings in the US but the almost religious fanaticism surrounding gun rights has so far held common sense at bay.

The recent BBC story about the Catholic Church’s Office of the Inquisition pressurising some US nuns who are considered too liberal by the Church hierarchy got me to wondering whether our behaviour today is much different to that in medieval times.

To make the parallel to medieval times we have to substitute modern institutions. Governments and their institutions ( such as the United Nations or the IMF or the ICC) are today the equivalent of the medieval monarchs and their Catholic Church. They bless some countries and excommunicate others. They tolerate the same behaviour (for example the quest for nuclear weapons) in favoured countries and condemn it in others. They support uprisings against some of their less-favoured member countries and help suppression of rebellion in others. They enforce sanctions – even with the use of collective force – against some and ignore the same behaviour in others. And like the college of cardinals a select group of 5 nations and the 15-member Security Council makes up the holy inner circle controlling these institutions.